WASHINGTON - Attorney General Merrick Garland, a stoic former federal judge intent on restoring rule-of-law order at the Justice Department, gradually came to accept that he would need to appoint a special counsel to investigate Donald Trump if the former president ran for the White House again.
But that did not mean he liked doing it.
Garland made it clear from the start that he was not inclined to tap outsiders to run investigations and indicated that the department was perfectly capable of functioning as an impartial arbiter in the two criminal inquiries involving Trump, according to several people familiar with the situation.
But the appointment of a special counsel, Jack Smith, on Nov. 18, and a painstakingly planned rollout of the announcement, signaled a significant, if subtle, shift in that approach. Garland has shown a growing willingness to operate outside his comfort zone - within the confines of the rule book - in response to the extraordinary circumstance he now finds himself in: investigating Trump, a top contender for the 2024 nomination of a party that is increasingly rallying around the charge that Garland has weaponized the Justice Department against Republicans.
"There is a political dimension that can't be ignored - this is an investigation that is being used by the target and his allies as a mobilization moment in a political campaign," said Daniel C. Richman, a former federal prosecutor and a law professor at Columbia University. "That's why you are seeing the department leaning forward in making these moves, and getting as much detailed information about an ongoing investigation out there as it can."
In studying how to proceed, Garland has tried to steer clear of issuing the unusual public statements favored by former FBI Director James Comey during the investigation of Hillary Rodham Clinton's emails, believing that those actions, and political meddling during the Trump administration, violated department protocols.
The department's leaders have, however, tried to counter Trump's claims that they are engaged in a partisan witch hunt intended to destroy him.
Top officials, led by Deputy Attorney General Lisa Monaco, have leveraged Trump's court challenges in the investigation into his handling of sensitive government documents as an opportunity to broadcast previously hidden details, while adhering to department policy.
The Justice Department did not officially support the effort to unseal the affidavit used to obtain the warrant for the search of Trump's Mar-a-Lago club and residence in Palm Beach, Florida, in August. But when Trump's lawyers did not oppose that bid, department officials seized the moment, and used the filing to offer a detailed timeline of Trump's actions that established the public narrative of the case.
After Trump sought an independent review of documents retrieved from Mar-a-Lago, department lawyers discussed sharing several photographs of the seized records to provide visual proof that Trump had not fully complied with a subpoena in May that required the documents' return, according to people familiar with the situation.
Garland signed off on the decision to release a single picture of the files, some bearing high-level classification markings, arrayed on the floor of Trump's office - now the defining image of the investigation.
He cast the appointment of Smith as voluntary, but compulsory, dictated by the section of the law that allows an attorney general to install a special counsel under "extraordinary circumstances."
Garland appears to view Smith as more of an internal decision-maker than a public buffer: The attorney general intends to follow the letter of the statute, and will most likely accept Smith's findings unless his conclusions are "inappropriate or unwarranted" under the department's precedents, a person familiar with his thinking said.
Already, Garland is dealing with two comparable cases, both inherited from the Trump administration, and in each he has appeared inclined to abide by the decisions of the special counsels overseeing the investigations.
Garland did not, for instance, overrule John Durham, appointed under Attorney General William Barr to investigate the FBI's inquiry into the Trump campaign's links to Russia, when he brought two criminal cases, now widely seen as flimsy, that resulted in acquittals. He has also kept an arm's length from the investigation of President Joe Biden's son Hunter by a Trump appointee, David Weiss, the top federal prosecutor in Delaware, even though he rejected the idea of appointing a special counsel.
Smith, who once led the department's public integrity unit, will oversee the day-to-day operations of the documents investigation, and of the investigation into Trump's bid to cling to power after his electoral defeat in 2020. He will make recommendations on whether to prosecute and could produce a report, which the attorney general may make public.
Appointing a special counsel was briefly considered under a menu of options by prosecutors handling the case in the fall of 2021, when the U.S. attorney's office in Washington began examining Trump's involvement in the Jan. 6 attack, according to people familiar with the situation.
It was taken up more seriously after FBI agents searched Trump's residence on Aug. 8, but Garland and his aides intensively discussed the option as the midterm elections neared. The final decision was prompted by Trump's announcement this month that he planned to run again, and Biden's suggestion that he would seek reelection.
Smith has been on the Justice Department's radar for a while. One former official described him as a "golden unicorn" - a former prosecutor with three decades of experience investigating politicians and war criminals who is registered as an independent.
Another selling point: Smith's time abroad during most of Trump's administration. Since 2018, he has worked as a war crimes prosecutor in The Hague and can credibly claim to be approaching the investigations with an outsider's perspective.
The appointment also merged two sprawling investigations, involving dozens of prosecutors operating on separate tracks, under a single supervisor, Smith.
Department officials emphasized that Smith would not start from scratch but would bring existing investigations to their conclusion and develop potential links between the two lines of inquiry.
The documents case appears to be proceeding more quickly than the Jan. 6 investigation. Public filings and interactions between law enforcement officials and defense lawyers indicate that a lot of work remains, and law enforcement officials with knowledge of the investigation emphasized that the department was unlikely to sign off on charges unless it was convinced that it would prevail in court.
Evidence made public points to a case based on a section of the Espionage Act, which makes it a crime to mishandle closely held national defense information - and a potential obstruction of justice charge stemming from the former president's refusal to comply with the subpoena in May.
"The obstruction charge looks more and more to be the most compelling charge for the government to bring," said David H. Laufman, the former chief of the counterintelligence unit of the Justice Department, which is leading the Mar-a-Lago investigation.
One of the biggest questions Smith is likely to face is whether prosecutors would consider bringing only an obstruction case without addressing the underlying possibility of an Espionage Act violation. Some prosecutors see that as the most straightforward path to a prosecution. Garland's announcement of a special counsel referred to obstruction three times.
If Smith's appointment shifted operational responsibility for the investigation, it did little to take the pressure off Garland.
The appointment is likely to offer limited protection from a coming partisan siege. The new Republican majority in the House has pledged to investigate what it has described as the "politicization" of the Justice Department, including "the department's unprecedented raid on President Trump's residence."
Trump wasted little time trying to undermine confidence in Smith's impartiality after it was disclosed that his wife served as a producer on a Michelle Obama documentary and donated $2,000 to Biden's 2020 campaign.
It is, at least, a familiar position for Garland: Few public figures have been so tempest-tossed by the politics of the moment, and few have tried so hard to rise above the hyperpartisan environment in Washington.
Senate Republicans blocked his nomination to the Supreme Court in 2016 in a brazen power play that helped Trump cement a conservative supermajority. Ron Klain, Biden's chief of staff, backed his selection as attorney general in early 2021, believing Garland would be the best person to restore order at the Justice Department after the Trump administration.
For his part, Biden believed Garland deserved an important position after the Supreme Court debacle, as did several key Republicans, ensuring his confirmation.
Other factors might have played a part in his selection, according to several Democratic aides. Political advisers to Biden believed that picking someone with whom the incoming president had a closer relationship, like former Alabama Sen. Doug Jones, would be seen by critics as an attempt to control the department's long-running investigation of Hunter Biden.
In public, Garland has forcefully rejected suggestions that external political forces have influenced any of his decisions, and he has gone to extremes to avoid the slightest appearance of partisanship.
In October, he initially pulled out of a convention of police chiefs in Dallas when his staff flagged concerns that it could be interpreted as a violation of his ban on political speech in an election year, according to a person involved in organizing the event. He eventually attended, but only after his aides reconsidered the decision.
Garland's critics on the left have also expressed concerns about Smith's appointment, contending it would delay a decision on the cases until after the 2024 campaign.
Garland resisted that characterization, and Smith, who is recovering from a knee injury in the Netherlands, issued an even more emphatic statement, saying that the "pace of the investigations will not pause or flag under my watch."
If the rollout seemed to outsiders like a typically scripted statement, it was seen by the attorney general's allies as a sign, albeit a modest one, that he is willing to make adjustments to confront the challenges ahead.
Garland waited three days before delivering a brief public explanation for the search of Trump's Florida estate in August, giving the former president's supporters time to spread vitriol and conspiracy theories.
When he appeared before cameras to announce Smith's appointment three months later, he seemed determined not to repeat the delay, offering a far more expansive statement an hour after he had signed the order.
"Appointing a special counsel here is the right thing to do," Garland said.
© 2022 The New York Times Company
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